There’s Justice in the Death of Death as Justice – Pt. 2

It appears a measure banning the death penalty may be on the ballot in California this November.  The 800,000 signatures gathered are currently being validated so we shall see.

I posted in a previous blog about the systematic racism inherent in the application of capital punishment, but in doing so I may have missed the greater point:

Innocent people are very likely being executed–in which case race or any other group identifiers are a secondary concern.  There is no way to be sure about how many wrongful executions have taken place because courts do not review the potential innocence of a convict after execution.  Resources are allocated to those whose lives can still be saved.

The execution of Claude Jones is a prime example.  Jones was executed in 2000 after George W. Bush’s clemency advisers failed to inform the Texas governor of  a request for a DNA test.   A hair allegedly coming from Claude Jones was the only evidence linking him to the crime scene.  The DNA technology was not available at the time of Jones’ conviction and Gov. Bush had stayed previous executions to allow for DNA testing.  In 2007, a judge ordered for a DNA test of the hair sample.  The results were not definitive, but suggested that the hair sample did not come from Jones.  (You can read more about Claude Jones and others who may have been wrongfully executed here.)

DNA evidence has played a key role in exonerating several death penalty convicts.  Unfortunately, DNA testing is impossible in a great majority of cases.  However, there are other evidential and procedural mistakes that lead to convictions of innocent people.

  • Confessions have been obtained by police through coercive interrogation tactics.
  • Faulty line up techniques and witness leading has strengthened inaccurate witness testimony.
  • Other characteristics, such as gang affiliation, drastically affect conviction rates, irrespective of the evidence.
Los Angeles District Attorney, Steve Cooley

There is also the political angle.  District attorneys, often elected to office, don’t want to look weak on crime.  Convictions rates sell better than satisfying justice.  An example of this is the injunction filed against Los Angeles district attorney Steve Cooley for retaliating against prosecutors who unionized  because they were being pressured to convict people they believed to be innocent.

Perhaps the best argument against continuing with the death penalty is the staggering (even prohibitive) cost of capital cases.  Simply put, it is far more expensive to execute a convict than to imprison that convict for life without parole.  In fact, several states have repealed or discontinued capital punishment solely because of the expense.

The exorbitant cost (roughly US$30 million per execution)  lies in the additional requirements imbued in death penalty cases.  There are typically twice as many attorneys involved; there are more pre-trial motions; jury selection is more in -depth and jurors are usually sequestered; two trials are required, one for guilt and one for sentencing; the actual trial tends to take 3-5 times longer; then comes the series of Constitutionally-mandated appeals, during which time, inmates are held in maximum security on death row at an additional cost of roughly US$90,000 per year, per inmate for a duration generally lasting between 10-15 years.  The appeals system is so backlogged it takes roughly 5 years just to get an attorney assigned (imagine if you’re innocent :().

This long, drawn out system full of multiple appeals is the source of much consternation for death penalty supporters.  Unfortunately for them, there’s not much that can be done in this regard.  The Fifth Amendment plainly states:

No person shall…be deprived of life, liberty, or property, without due process of law.

So until the convicted have availed themselves of every legal process they are due, the state does not have the right to kill them.  It might seem like a hassle but it’s for good reason.  A Columbia Law School study showed that 68% of death penalty convictions are overturned on appeal and 82% of re-tried death penalty cases resulted in life sentences. In fact, only 1 in 10 death penalty convictions actually leads to an execution.

Death penalty cases are often motivated by the emotional response to the crime rather than a reasoned evaluation of the evidence.  Once reason is applied, juries find that most of these cases do not meet the death penalty standard–because you don’t just want to be sure, you want to be absolutely-fucking-positive of guilt.  That’s almost never the case, as the stats show.

We must also consider the toll death penalty convictions take on prosecutors and jurors.  These people are responsible for answering for the murder of one person (or more) with the murder of another.  We have to remember that in reality, capital punishment tests people’s conscience and moral compass.  It’s one thing to pontificate in the abstract and quite another to make the decision about a person you can look in the eye and live with it.

I am sympathetic to seeing violent, merciless killers pay the ultimate price for what they’ve done.  I would certainly want anyone who kills someone I care about to face execution.  But I am not so thirsty for revenge that I’d risk murdering an innocent person.

The death penalty does not deter crime.  It is extremely costly.   It’s rife with mistakes, politics, and abuse.  It’s bogged down with mandatory procedures.  It takes an emotional toll on everyone involved.  It has and will continue to kill innocent people.  It is a revenge tool primarily used by third world nations and despotic regimes–most of the modern world has abandoned it.  And in the end it does not bring the victims back.

If and when you cast your vote on this measure in November, it’s important to remember that it’s not about the morality of executing brutal murderers, it’s about whether or not you want to continue this terribly flawed, biased, and ineffective system.

You have to ask yourself if a little blood from the guilty is worth a little innocent blood and a lot of taxpayer money.

There’s Justice in the Death of Death as Justice

America's past or future?

Connecticut just became the 17th state to repeal the death penalty.   Japan, China, and the United States are the only modern nations that still employ capital punishment.

Most modern nations have banned it outright.  Israel uses it only in extreme cases such as treason and terrorism (understandably).  Even Russia has a de facto death penalty ban.

We share  company with the likes of Iran, North Korea, and Uganda.

(Click to enlarge)

I’ve gone back and forth on the death penalty myself.  I’ve been leaning against it in recent years, but after a little digging on the subject, I have become firm my opposition to capital punishment.

I’m not opposed to it theoretically.  I accept that the death penalty is not justice but state sponsored revenge.  It does not rehabilitate.  It does not deter criminals or affect crime rates.

I’m okay with it–theoretically–based on my gut reaction when I hear about the absolutely horrible things some people do, their total disregard for other people’s lives and humanity.

My problem, however, is with how capital punishment is applied.  For a government to execute one of it’s own citizens there can be no bias and guilt must be proven beyond any doubt whatsoever.  One innocent person being murdered by the government is unacceptable.

So far, we’ve failed (EPICALLY) on both counts.

  • Since 1973, over 130 people have been released from death row with evidence of their innocence.
  • From 1973-1999, there was an average of 3 exonerations per year. From 2000-2011, there has been an average of 5 exonerations per year.

DNA testing has played a key role in at least 14 of the exonerations.  But there are many cases where DNA cannot help because of the deterioration, misplacing, or destruction of  evidence.

Think about that, over 130 people found guilty beyond a reasonable doubt were later proven innocent. It’s very likely that dozens of innocent people have been executed by the state simply because we do not have the means to prove innocence.

Then there’s bias.  Leaving aside gender and age which are each discussions on their own, race plays a HUGE factor in capital punishment cases.  The race of the victim, the race of the jurors, and even the race of the prosecutors significantly impacts the rate of  death penalty convictions.

Race of the victim in death penalty convictions.

Nationally, people who kill whites are 3 times more like to receive the death penalty than people who kill blacks and 4 times more likely than people who kill Hispanics.  Additionally all-white juries convict black defendants 16% more often than white defendants (in all types of criminal cases).

This is the textbook definition of systematic racism.  If a white man killed a Chinese man, don’t you think the likelihood of a death penalty conviction would change if the Jury was mainly Chinese or mainly white?  What about a black or white jury judging a black panther or a skinhead? If the victim is a 19-year old pretty blonde or a 40-year old migrant worker? It’s naive–or dishonest–to say that bias wouldn’t play a role.

This is an ingrained dilemma.  People are convicted by juries of their peers.  The attitude and mindset of all Americans plays a role.  You would have to “de-prejudice” every single person in America to fix the glitch in the system.  Impossible.

The Unabomber attacks, the Holocaust Museum shooting, the Oklahoma City bombing, the Centennial Olympic Park bombing, the 2001 Anthrax attacks, and the 2010 Austin IRS building plane crash were all acts of domestic terrorism carried out by whites.  (This is to say nothing of the 8 murders, 17 attempted murders, 153 assaults, 3 kidnappings, 41 bombings, 73 arsons, 383 death threats, and 619 bomb threats carried out against abortion clinics and providers since 1977, a majority of which by whites.)  Yet we didn’t hear a national outcry to have young white males get singled out and searched at security checkpoints.  No one caused a incident because they saw a white guy wearing a hooded sweatshirt and sunglasses boarding a plane.

Would it still be the case if all that stuff had been done by Mexican-Americans?

The fact is we’re prejudiced.   We see other people and before getting to know them as individuals we form an opinion based on how they dress, act, and talk.  It’s part of our nature–everyone’s nature.   We continue to combat it and we continue to get better about correcting it.  But we are a long, long way from getting past it.  In fact, we’ll probably have banned capital punishment long before getting beyond all the isms we might have against other people.

And until we do we cannot have a system that is so vulnerable to those biases deciding who lives and who dies.